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House ethics board drives transparency, controversy

Five years ago today (TUESDAY MARCH 4) , Rep. Sam Graves, R-Mo., welcomed a witness to a House Small Business Committee hearing and launched a new era of ethics investigations in Congress. That hearing became

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House ethics board drives transparency, controversy

The independent board was created by Congress in 2008 to review allegations and make recommendations to the Ethics Committee.

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Rep. Sam Graves (Reed Hoffmann, AP)

Sam Graves

Date of referral: Aug. 6, 2009

OCE findings: In its first public report, OCE concluded that the Missouri Republican may have violated House rules and House precedent regarding conflict of interest by inviting a friend who was invested in renewable fuel plants with the congressman's wife to testify on ethanol subsidies before the Small Business Committee.

Ethics Committee resolution:The committee concluded that Graves had not violated any House rule or standard of conflict and closed the case. The Ethics Committee said OCE had misinterpreted the rules and handled the investigation incorrectly, leading the OCE to respond to criticisms in a public letter.

OCE findings:OCE concluded that five members of the Congressional Black Caucus -- Charlie Rangel, D-N.Y., Carolyn Cheeks Kilpatrick, D-Mich., Donald Payne, D-N.J., Bennie Thompson, D-Miss., and Del. Donna M. Christensen, D-Virgin Islands -- improperly accepted a trip to St. Maarten funded by Carib News Foundation. While House members can accept travel from non-profits, OCE concluded that corporations such as AT&T and Pfizer also sponsored the event.

Ethics Committee resolution: The committee found that Thompson, Payne, Kilpatrick and Christensen did not knowingly violate House rules, but had to repay the travel costs. It found that Rangel's office knew of the corporate contributions and, therefore, knowingly accepted impermissible gifts. The panel told Rangel to repay travel costs and issued a public criticism of his actions.

OCE findings: In 2009, several representatives requested earmarks -- allocations of federal funds to specific projects -- for clients of the lobbying firm PMA Group Inc. and received campaign donations from lobbyists and others affiliated with the firm. OCE investigated Reps. Marcy Kaptur, D-Ohio, Norm Dicks, D-Wash., Bill Young, R-Fla., Jim Moran, D-Va., Todd Tiahrt, R-Kan., and Peter Visclosky, D-Ind., for possible bribery or illegal gifts. The board recommended dismissal of all of the cases except Tiahrt and Visclosky, who did not cooperate with the OCE investigation.

Ethics Committee resolution: The Ethics Committee concluded that none of the lawmakers violated House rules and "found no evidence that Members or their official staff considered campaign contributions as a factor when requesting earmarks."

OCE findings: Between 2008 and 2010, OCE found six members of Congress who took foreign trips to have pocketed excess per diem -- a stipend intended for meals and other approved expenses. The OCE concluded that there was reason to believe Reps. Robert Aderholt, R-Ala., G.K. Butterfield, D-N.C., Eliot Engel, D-N.Y., Alcee Hastings, D-Fla., Solomon Ortiz, D-Texas, and Joe Wilson, R-S.C., had taken extra per diem.

Ethics Committee resolution: The committee concluded that there was not sufficient evidence to support that members violated any rules, since lawmakers were not required to collect receipts to account for the per diem. The committee dismissed the matter and no further action was taken, but the House later changed per diem rules to require receipts.

OCE findings: The OCE found that the Georgia Republican, while acting as a member of Congress, engaged in political discussions that had the potential to directly benefit his business -- a vehicle inspection company -- when he and his staff member met with Georgia state officials regarding a proposed vehicle inspection program. The OCE also concluded that Deal earned more from the company than he was allowed to make from outside sources while in office.

Ethics Committee resolution: On March 21, 2010, Deal resigned before the Ethics Committee released its decision. Because of this, the Ethics Committee no longer had jurisdiction over the matter, and no public statement was issued. But OCE chose to issue its referral report anyway. Deal was elected governor of Georgia later that year.

OCE findings: OCE investigated Reps. John Campbell, R-Calif., Tom Price, R-Ga., and Joseph Crowley, D-N.Y., for holding fundraising events with financial industry lobbyists in the days days leading up to the House's vote on the Wall Street Reform and Consumer Protection Act of 2009. The OCE concluded that the representatives solicited or accepted contributions "in a manner which gave the appearance that special treatment or access was provided to donors or that contributions were linked to an official act."

Ethics Committee resolution:On Jan. 26, 2011, the Ethics Committee cleared all three representatives of any wrongdoing, writing in its official release that the actions of the members "raised no appearances of impropriety" and were not violations of ethics rules.

OCE findings: The OCE began investigating Rep. Shelley Berkley, D-Nev., after she advocated with federal officials on behalf of the University Medical Center of Southern Nevada. The case was recommended to the Ethics Committee for review after it had found Berkley "had a financial interest" in the hospital's kidney program through her husband, who was a partner in Kidney Specialists of Southern Nevada.

Ethics Committee resolution: The Ethics Committee found that Berkley had violated House rules, but because of her "cooperative approach to this process and her candor," the committee did not take any further action. At the time of the investigation, Berkley had announced that she was leaving the House and running for Senate. She later lost the race to Sen. Dean Heller.

OCE findings: OCE concluded that the California Democrat had requested that Treasury officials meet with officials of OneUnited Bank, where her husband was a stockholder and former board member. OCE recommended that the Ethics panel review the case for possible conflict of interest if Waters was working in her own financial benefit.

Ethics Committee resolution: The committee scheduled a rare trial in the Waters case but called it off when committee staff were accused of misconduct in the case. The committee hired an independent investigator who documented bitter infighting among committee staff and concluded that Waters had not violated House rules. However, a trial was held for Waters' chief of staff and grandson, Mikael Moore, and the committee issued a letter of reproval for Moore taking steps to help OneUnited after Waters had told him not to.

Five years ago Tuesday, Rep. Sam Graves, R-Mo., welcomed a witness to a House Small Business Committee hearing and launched a new era of ethics investigations in Congress.

That hearing became the target of the first publicly disclosed investigation by an independent ethics review board chartered in 2008 to reinvigorate the ethics process on Capitol Hill. Since then, the review board – confusingly called the Office of Congressional Ethics – has sent to the House Ethics Committee and then released to the public three dozen reports suggesting a member of Congress may have violated House rules or standards.

Yet in nearly every case, the House Ethics committee declined to punish the lawmakers.

Supporters of the independent board say it has done precisely what it was intended to: making the ethics process in the House transparent and predictable, and creating consequences for transgressions that had for years been swept under the rug by the Ethics Committee.

Detractors argue the opposite: That the panel, known as the OCE, has created a system of public humiliation for lawmakers accused of petty offenses.

It is only because of the OCE that the Ethics Committee last month announced that it was looking into alleged violations by Rep. Cathy McMorris Rodgers, R-Wash., and Rep. Markwayne Mullin, R-Okla. The committee had received referrals in both cases from OCE, and by rule had to announce that the matters were under review. By the end of March, they will have to publicly release the OCE allegations in both cases, unless they intend to investigate further.

And more referrals are coming. An OCE status report released in January indicated that there is another referral requiring a public statement from the committee in the next few weeks.

'Draining the swamp'

By comparison, in 2007, before the OCE was created, the Ethics Committee announced reviews of conduct of four members of Congress. Two of these cases involved lawmakers who were facing charges in court; the other two were for improper trips taken four years earlier. By design, the committee carries out the bulk of its work privately, doling out advice, guidance and even penalties to lawmakers and staff without public notice.

That year, Rep. Michael Capuano, D-Mass., headed an ethics task force created at the behest of the new House speaker, Nancy Pelosi, D-Calif. Democrats had hammered Republicans on ethics issues in the 2006 campaign, and Pelosi had promised to "drain the swamp." Capuano's panel recommended creation of the OCE, and he said at the time, "An independent entity will greatly increase transparency and end concerns about the 'old boy network.'"

Five years later, Capuano says, "It seems to me it is working at it was intended."

Capuano told USA TODAY, "the idea at the time was that the Ethics Committee was just burying things," and OCE was meant to restore "some faith that we will deal with the handful problems within our ranks." And that has worked, he said. "I haven't heard any outcry from anyone that the House is burying ethics complaints."

Capuano is now a member of the Ethics Committee, and says there are probably "tweaks" that could be made to the rules to make the process more effective. But that would likely require creation of a new task force to reconsider House ethics rules and there is no plan for such an undertaking now.

Former representative Todd Tiahrt, R-Kan., was a member of the Capuano task force but did not endorse the recommendations and voted against creation of the OCE. He was later one of several members investigated by OCE for allegations of receiving campaign donations in exchange for legislative favors. Tiahrt was exonerated by the Ethics Committee, but the case was used against him in his unsuccessful Senate campaign in 2012.

"It hasn't worked," Tiahrt -- now a business consultant in Kansas – told USA TODAY last week. "What it has allowed is political opponents to make anonymous changes against people who are in the middle of a campaign. . . . It's become a political tool and there is no accountability for that."

Questions of fairness

Critics of the OCE point out that the Ethics Committee generally declines to punish lawmakers for things OCE said they did wrong.

For example, in the Graves case, OCE concluded that Graves created "the appearance of conflict of interest" when he invited his friend – who was an investor with Graves' wife in some biofuels facilities – to testify before the Small Business Committee on ethanol subsidies. The Ethics Committee responded that "no relevant House rule or other standard of conduct prohibits the creation of an appearance of a conflict of interest when selecting witnesses for a committee hearing," so Graves had broken no rules.

Brian Svoboda, an ethics lawyer who has defended Democrats in ethics cases, said the fact that OCE has increased transparency is not always a good thing – or fair.

"The real ballgame is the findings that they send to the Ethics Committee," Svoboda said. "There is a good case to be made that the punishment that is being meted out is when the findings are sent to the ethics committee and those findings become public. Even if (the members) are going to be exonerated at the end of the day, they are going to face adverse publicity in the meantime."

Several lawmakers have left office or lost elections in part because of publicity over OCE investigations, Last month, Rep. Rob Andrews, D-N.J., resigned to take a job at a law firm before the Ethics Committee could complete its investigation of an OCE report alleging that he used campaign money for personal expenses.

OCE staff director and chief counsel Omar Ashmawy defended the board's work. "Our reviews are done in an independent, non-partisan way, based solely on facts. And for the first time ever there is an official public record detailing investigations of misconduct so citizens may be better informed."

Elliot Berke, a lawyer who has defended Republican lawmakers in ethics matters, said, "At the time the OCE was created it did play a role in reinvigorating the ethics process," since the Ethics Committee was largely paralyzed. But "with a functioning House Ethics Committee, I am not sure the OCE provides that same benefit," Berke said. "At this point, I'd personally rather see tax dollars go towards a stronger investigative wing of the Ethics Committee than to the OCE."

But Craig Holman, lobbyist for the watchdog group Public Citizen, said OCE is playing a critical role in congressional ethics. "Not only has it spurred the House Ethics Committee into doing more than it ever had in the House's history . . . It has made the whole process more transparent."

Holman argues that if OCE's reports become fodder for campaign opponents more than Ethics Committee discipline, "that is not necessarily unfortunate – that is one of the consequences of not abiding by the ethics rules steadfastly."